Lee v. Fidelity Storage & Transfer Co.

Hadley, C. J.

— This is an action to recover the value of certain personal property, for failure to perform an alleged contract to deliver the goods. The complaint avers that the defendant is a corporation, existing under the laws of Minnesota for the purpose of storing, forwarding, and distributing goods, wares, and .merchandise for hire, between St. Paul, Minnesota, and various other cities throughout the United States; that on the 12th day of November, 1906,-the plaintiff’s agent at St. Paul delivered to the defendant certain described goods belonging to the plaintiff, of the value of $350, which the defendant agreed to safely forward and deliver to the plaintiff at Tacoma, Washington. It is alleged that the defendant has failed and refused to deliver the goods to the plaintiff at Tacoma, wherefore she seeks to recover. The defendant denied liability, and after a trial before a jury, a verdict was returned for the plaintiff in the sum of $350. Judgment was entered upon the verdict, and the defendant has appealed.

The defendant moved specially to quash the service of summons. The summons was served upon the Bekins Moving and Storage Company of Seattle, as agent of the appellant. It is admitted that the company named was the agent of the appellant in this state for certain purposes, but it is- contended that it is not an agent upon whom service of process could be made. It appears that the appellant engages in assembling car load lots of household and other goods from different persons, and in forwarding them to different points, the purpose being to enable individuals who have less than car load lots of goods to avail themselves of the benefit of car load rates. When shipments are made to Seattle and vicinity, the Bekins Moving and Storage Company, of that city, acts as agent for the appellant to receive and distribute the goods, to store them if necessary, and to collect the shipping charges. This action was brought in King county where this agent of appellant resides. Under such conditions the appellant was doing business within this state, and the service upon such an agent was sufficient, within the following provision of Bal. Code, § 4875 (P. C. § 332):

“The summons shall be served by delivering a copy thereof, as follows: ...

“9. If the suit be against a foreign corporation or nonresident joint stock company or association doing business within this state, to any agent, cashier or secretary thereof.”

See, also, Sievers v. Dalles, Portland & A. Nav. Co., 24 Wash. 302, 64 Pac. 539. It was not error to deny the motion to quash the service.

It is next assigned that the court erred in denying appellant’s motion for a directed verdict in its favor. We think there'was sufficient evidence for the jury. The respondent’s testimony was to the effect that appellant’s contract was a clean-cut one to deliver to her, at Tacoma, the goods which her agent at St. Paul delivered to appellant there; that the compensation was agreed upon, and the goods were accepted without prepayment therefor. Respondent’s testimony shows that the agent in Seattle refused to forward the goods from Seattle to Tacoma, or to deliver them at the latter place, unless the charges were fully paid in Seattle. If there was such a contract as respondent says there was, then the above constituted a breach of it. It was for the jury to say whether such a contract existed, and if so, it was immaterial whether appellant may have called itself a mere forwarder or forwarder and distributer. The contract itself controlled without regard to what appellant may have named its general business.

It is assigned that the court erred in charging the jury that appellant as a forwarding agent could not collect its charges until it had delivered the goods at their destination. The effect of the court’s instruction was not to say that appellant was a mere forwarding agent; but rather that under a contract to fox-ward goods from St. Paul to Tacoma, if that was the contx-act, the appellant was not entitled to collect the charges until the goods reached Tacoma, since it accepted them without prepayment. In other words, that appellant would not fully perfox-m its part of the contract until it delivered the goods at the point of destination designated in the contract. The contention upon this instmction is based upon the argument that appellant was a mex-e forwarder, and was not a common carx-ier, and that the responsibilities of the two rest upon different principles. To our minds, however, as heretofore intimated, it is immatex*ial what appellant is called. If it undertook to deliver the goods at Tacoma, it was bound by its contx-act and could not recover its compensation until it had fully performed its own obligation in the premises. It accepted the goods without prepayment, and having done so, it was required to fully complete its contx-act before it could demand payment. Moreover, if the expressed purpose of appellant’s business were material, it is in any event designated as both a forwarder and distributer, and the latter is sufficiently comprehensive, as a mex-e tx*ade designation, to include the shipment of these goods from Seattle by appellant’s agents and their delivery to its customer at Tacoma. We see no error in the instruction.

It is next assigned that the court erred in instructing that no demand for the goods was necessary if the appellant, thx-ough its Seattle agent, refused to deliver the goods until the charges were paid in Seattle. The instruction stated that, before a suit for conversion can be brought, there must be a demand and a refusal to deliver, but that, if the appellant knew the place of x-esidence of the respondexxt, and through its agent in Seattle refused to forward the goods from Seattle to Tacoma until the charges were paid in Seattle, then the necessity for a demand was waived, inasmuch as it is an idle thing to demand something which a person says he will not do. We see no error in the instruction.

It is contended that it was error to charge the jury in substance that, if there was a conversion, the appellant would be liable for the reasonable value of the goods at the time of the conversion, because it is also contended there was no evidence as to the value of the goods at the time of the alleged conversion. The best evidence the respondent could give as to the value was her own testimony. As the goods were not used after they passed into appellant’s hands, she not unfairly presumed that they were of the same value as when received. She could not give the cost price and then show the extent of the depreciation, for the reason that the goods were in appellant’s possession. Being in appellant’s possession, it was in a position to show their real value; but it refused to do so, and it cannot now take advantage of its refusal. Under such circumstances it should be presumed that, if appellant had introduced proof, the value placed upon the property by respondent would not have been reduced. There was no prejudicial'error in the instruction.

We think the charge of the court was in all respects sufficient, under the issues and facts; and we do not find any of the objections thereto well taken. The judgment is affirmed.

Fuhleeton, Ceow, and Dunbae, JJ., concur.

Chadwick, J., took no part.